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Who is protected by the AWRs?
[ch 2: pages 52-53]All temporary agency workers, both full- and part-time are protected. An agency worker is defined as someone “supplied by a temporary work agency to work temporarily for and under the supervision and direction of the hirer”. This includes most agency workers who are generally referred to as “temps”.
The AWRs also cover agency workers who are supplied via intermediaries such as umbrella companies and payroll businesses. The genuinely self-employed are excluded from protection. Individuals who use a personal service company are also excluded (see page 40).
The AWRs met a fresh setback in 2013 with a surprise ruling in which the EAT decided that the definition of “agency worker” in the AWRs as someone “supplied by a temporary work agency to work temporarily” excludes any agency worker who is permanently employed by the agency on an employment contract terminable on notice. The ruling, in the following case, is under appeal to the Court of Appeal and a judgment is expected in 2015:
A group of agency workers were directly employed for several years by facilities management company Ideal. They always worked for the same end user, alongside its directly employed workforce. Their employment contracts were terminable by Ideal on giving statutory notice.
The agency workers claimed equal treatment rights under the AWR, but the EAT ruled that they were outside the regulations as their contracts were not “temporary”. The EAT said that the word “temporary” in the AWRs means “not permanent”. It does not mean “short-term”. In other words, a fixed-term contract of any length can be temporary, but an indefinite contract, terminable by notice, cannot.
Moran v Ideal Cleaning Services Limited UKEAT/0274/13/DM
If this judgment is upheld by the Court of Appeal it will significantly undermine the strength of the AWRs. The work arrangements in the Moran case reflect standard practice across the facilities management and outsourcing industries, with groups of agency workers directly employed by the facilities management company, working alongside the hirer’s employees for extended periods.